Judge tells feds to back off from medical pot group

April 20, 2004

SAN FRANCISCO – A judge on Wednesday ordered the federal government to keep away from a California medical marijuana group that grows and distributes cannabis for its sick members. gif' width=2 border=0>

The decision from U.S. District Judge Jeremy Fogel in San Jose was the first interpretation of a federal appeals court decision here last year that ordered the federal government not to prosecute a sick Oakland woman who smoked marijuana with a doctor's recommendation under a 1996 California medical marijuana law.

Fogel ruled that the Justice Department cannot raid or prosecute the 250 members of the Wo/Men's Alliance for Medical Marijuana, which sued the government after the Drug Enforcement Administration in 2002 raided its Santa Cruz County growing operation and seized 167 marijuana plants.

The group's director, Valerie Corral, said the group had been receiving and growing marijuana in secret since the raid out of fear of being prosecuted. But with Fogel's decision, the group intends on immediately planting hundreds of plants at Corral's one-acre property in the Santa Cruz hills.

The Justice Department, which urged Fogel not to issue an injunction barring new raids or prosecutions, declined comment. Spokesman Charles Miller said the government was reviewing the decision.

The marijuana group asked Fogel to issue the injunction after the 9th U.S. Circuit Court of Appeals ruled in December that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.

The San Francisco-based appellate court, ruling 2-1, wrote that prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.

'The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking,' Judge Harry Pregerson wrote for the 9th Circuit in December.

The court added that 'this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.'

That decision was a blow to the Justice Department, which argued that medical marijuana laws in nine states were trumped by the Controlled Substances Act, which outlawed marijuana, heroin and a host of other drugs nationwide. The Justice Department on Tuesday appealed that 9th Circuit decision to the Supreme Court.

The Controlled Substances Act, as applied to the Santa Cruz cooperative, Fogel wrote, 'is an unconstitutional exercise' of federal intervention.

Fogel's decision, meanwhile, furthers the conflict between federal law and California's 1996 medical marijuana law, which allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington state have laws similar to California, which has been the focus of federal drug interdiction efforts. Agents have raided and shut down several medical marijuana growing clubs.

The appeals court, the nation's largest, does not have jurisdiction over Colorado and Maine.

Wednesday's decision, in addition to December's Circuit ruling, are outgrowths of a 2001 U.S. Supreme Court ruling. That year, the Supreme Court said that medical marijuana clubs could not dole out medical marijuana based on the so-called 'medical necessity' of patients, even if they have a doctor's recommendation to use marijuana.

Justice Clarence Thomas wrote that an Oakland pot club could not defend its actions against federal drug laws by declaring it was dispensing marijuana to the medically needy.

But the justices said they addressed only the issue of a so-called 'medical necessity defense' being at odds with the Controlled Substances Act that says marijuana, like heroin and LSD, has no medical benefits and cannot be dispensed or prescribed by doctors.

In the 2001 decision, Justice Thomas wrote that Supreme Court left several questions unresolved, including whether the government could interfere with the states to make their own medical marijuana laws.

'The Supreme Court had left this door open,' said Gerald Uelmen, a scholar at the Santa Clara University School of Law who represented the Wo/Men's Alliance for Medical Marijuana.